Ideas

Whatever I feel like talking about.

Sunday, January 24, 2016

The Pleasure of Primary Sources

My most recent blog post was a byproduct of research for a chapter on 18th century English criminal law, a snippet from a several hundred page report by a parliamentary committee written in the early 19th century. The report is full of other interesting stuff. There are multiple interviews dealing with corruption at the parish level by a magistrate named Merceron, a local boss in the habit of illegally altering property taxes to reward his friends and punish his enemies and refusing to license public houses unless they agreed to buy their liquor from his preferred supplier. We get to see the accusation by the local rector, questioning of various people who did or did not get their public houses licensed, and Merceron's testimony in his defense.

More relevant to my current project are the views of law enforcement institutions expressed by those testifying. The system in London included both unpaid constables—the norm elsewhere—and a small number of constables employed, under the direction of magistrates, at a low salary. There were substantial parliamentary rewards on conviction for serious felonies, shared among the private prosecutor, the witnesses, and any constables or private thieftakers who played a role in apprehending and convicting the defendant. There were also rewards offered by crime victims for recovering their property and/or catching and convicting the criminal responsible.

A question that comes up repeatedly is the effect of the reward system on the incentives of the constables. The rumor is that they deliberately let someone get away with a string of minor crimes for which there is no reward until he "weighs forty pounds," commits a felony for which there is a forty pound reward. Practically all the witnesses questioned on that matter, most of them magistrates, insist that their constables would never do such a thing. Their concern is rather that jurors may disbelieve the testimony of constables on the unwarranted suspicion that they are biasing it to guarantee a conviction and thus a reward. That is offered as one argument for replacing the system of parliamentary rewards conditional on conviction with one of rewards given at the discretion of the magistrateswhether or not the defendant is convicted. The chairman doing the questioning is pushing that idea, as well as other reforms, and most of the magistrates agree.

The most interesting witness is John Townsend, a prominent constable whose job at times included protecting the Prince Regent. His opinion of his fellow constables is less optimistic:

I have, with every attention that man could bestow, watched
the conduct of various persons who have given evidence against their
fellow-creatures for life or death, not only at the Old Bailey, but on the
circuits, and I have always been perfectly convinced that would be the best
mode that possibly could be adopted to pay officers, particularly because they
are dangerous creatures; they have it frequently in their power (no question
about it) to turn that scale, when the beam is level, on the other side; I
mean against the poorwretched man at
the bar: why? This thing called nature says profit is in the scale; and,
melancholy to relate, but I cannot help being perfectly satisfied, that frequently
that has been the means of convicting many and many a man; and I told Sir
Charles Bunbury my opinion upon that subject thirty years ago, when he wanted
to get rid of rewards, it should be in the breast of the judges on the circuit,
and the judges at the Old Bailey, or the judge who tries at the Old Bailey,
whether they have convicted or not convicted the party; … they should have a
discriminating power to pay that officer according to the nature of the case:
then the officer does not stand up and look at this unfortunate creature, and
swear to this or that thing, or the other thing, for what? For the lucre–for
nature is nature, do with us what you will; and therefore I am convinced, that
whenever A. is giving evidence against B. he should stand perfectly
uninterested.

He agrees that rewards on conviction are a bad system—not because they lead to guilty men being acquitted by skeptical juries but to innocent men being convicted by the testimony of constables in search of blood money.

My favorite 18th century source is Casanova's Memoirs, the autobiography of a talented con man, gambler, entrepreneur, poet, author and adventurer. During a visit to London, Casanova observed window signs advertising the available of perjured testimony, was arrested on perjured testimony, encountered Sir John Fielding, the famous blind magistrate of Bow Street, was released after a night in jail when two respectable tradesmen agreed to stand bail for him.

His younger contemporary John Boswell, a Scottish lawyer famous mostly as the biographer of Samuel Johnson, kept a journal most of which has survived. It describes in great detail his unsuccessful attempt to get a pardon for a convicted client. The story provides an inside picture of the working of a legal system where almost all serious crimes were capital but only a minority of those convicted were executed, the rest being pardoned on condition of transportation, pardoned on condition of enlistment in army or navy, or given a free pardon, sent home, and told not to do it again.

All three of those are relevant to my current project, although I originally read both Casanova and Boswell for unrelated reasons. But there are lots of other readable, entertaining, and informative sources from other times and places. The Icelandic sagas, histories and historical novels written down in the thirteen and fourteenth century, many of them set and possibly composed in the tenth and early eleventh centuries, provide a readable and realistic picture of a medieval society. For early Islamic history try Mohammed's People, a history done as a pastiche from period sources, the memoirs of Usamah ibn Munqidh, a Syrian Emir and older contemporary of Saladin, and Tabletalk of a Mesopotamian Judge, a collection of anecdotes by a tenth century judge who, finding the stories told in polite company less good than the ones he remembered, decided to write down all of the latter.

Some of these have proved useful for my academic work, but that is not the main reason to read them. Good primary sources are a window into the past, showing you other times and places not filtered through modern historians but as lived by contemporaries. They are the nearest thing we have to a time machine.

Saturday, January 23, 2016

Tinder in the 19th Century

The Rev.Joshua King, called in, and examined.

“You areclergyman
of theparish of Bethnal-green?”

“The rector of that
parish.”

…

"Is the manner
in which those houses are conducted particularly disorderly?"

“I have reason
to believe it is; the Seven Stars and Three Sugar Loaves are a receptacle for suspicious
characters, at hours when all other public-houses are closed; and at the Sun, a
club significantly termed a cock and hen club, has been, and I believe still is
held.”

“In which boys
and girls meet?”

“Yes, and get
drunk and debauch one another.”

(Report from
the committee on the state of the police of the metropolis: with the minutes of
evidence, London, 1816.)

Sunday, January 03, 2016

SWAT Raids, Search Warrants, Perjury, and the Criminal Law

Two recent posts on the Volokh Conspiracy blog described a controversy over a no-knock SWAT raid authorized by a search warrant based on evidence of a visit to a gardening store and the presence of used tea leaves—described in the application for the warrant as marijuana leaves and stems—in the family trash. The first post criticized the court decision that prevented the victims from suing the police officers responsible, the second defended the decision.

The relevant facts appear to be:

1. The raid was part of “ 'Operation Constant Gardener,' basically a PR stunt in which the agency conducts multiple pot raids on April 20, or '4/20.'"

2. The basis for claiming the tea was marijuana was a field test known to produce a high rate of false positives—to frequently say something is marijuana when it isn't.

3. There was plenty of time to have done a more reliable test.

The judge's ruling dismissed the family's suit on summary judgement, meaning that it held that even on the interpretation of the facts most favorable to the plaintiffs, they still had no case. The argument was that the police officers had no obligation to know whether or not the test for marijuana they were provided with was reliable, hence had no liability for holding a family at gunpoint for two hours while searching their house on the basis of a test known to be unreliable.

It is not an absurd argument. But what it points at is the failure of a different part of the relevant legal system.

The material was used tea leaves, not an exotic substance that an American police officer would never have seen. In order to identify it as marijuana material, the officer would have had to be familiar with what marijuana looked like. In the words of the lab that later examined the material, “It does not look anything like marijuana leaves or stems.”

I think that meets the legal standard for a statement that the officer knew or should have known was false. A false statement on a sworn affidavit is perjury, a felony. My guess is that a felony conviction would impose a larger cost on a police officer than a successful civil suit for an illegal search.

This is one out of a multitude of cases in which a no-knock raid turned out to have been authorized by a search warrant based on false information. No doubt in some such cases the officer responsible for the application had made a legitimate error, but it is hard to believe that was the case in all of them. I have not yet seen a single news story about a police officer convicted of obtaining a search warrant on a perjured affidavit.

All crimes are, legally speaking, offenses against the state, not the actual victim. It is the state that controls prosecution. If you commit a crime which the relevant authorities approve of, you are unlikely to be prosecuted. If the relevant authorities did not approve of the use of a test that would produce evidence for marijuana whether or not it was there and thus authorize searches in violation of the requirements of the Fourth Amendment, they would not be using it. In a sufficiently high profile case federal authorities might prosecute state or local authorities for something the latter approved of and the former did not, but that is very much the exception, not the rule.

One solution to the weakness of criminal law as a way of disciplining state actors is to use civil law instead, since under civil law it is the victim, not the state, that chooses whether to prosecute. The higher the standard the court imposes on such suits, the less practical that is.

Another Planned Parenthood Controversy

Some time back, Planned Parenthood was accused of selling fetal organs. The organization denied the charges and it seems clear that at least some were exaggerated or false. It was, for some time, a high profile controversy.

I have recently come across another issue having to do with Planned Parenthood. It is claimed that the parent organization holds that people with HIV have no obligation to inform their sexual partners of the fact, that they should be free, if they wish, to have unprotected sex without doing so.

In this case, as best I can tell, the organization has not denied the charge and it is probably true. Searching the web for information, I found the web site of the IPPF, the International Planned Parenthood Foundation. The closest I could find on that site to anything relevant was a piece attacking Sweden for laws that make it a criminal offense for someone with HIV to have unprotected sex with a partner without informing the partner of his HIV status. I could find nothing denying the charge that Planned Parenthood materials hold that HIV positive individuals have a right to have sex without informing the partner.

Oddly enough, this is a much lower profile case. Almost all of the places where I could find mentions of it were politically conservative, the most prominent being the publication of the Federalist Society. None of the mainstream media seem to have picked up on it, so far as I can tell.

Am I missing something? Is this evidence of political bias by the mainstream press, unwilling to carry a true story that makes a group they approve of look bad? Including Fox News and the Wall Street Journal? It seems unlikely.